The Court of Appeals of Texas' recent opinion in Grant v. State, 2008 WL 399208 (Tex.App-Austin 2008) seems to me to be an opinion that confused the concepts of character evidence and impeachment evidence. In Grant, Johnny Alison Grant was found guilty of aggravated assault by causing serious bodily injury based upon an alleged attack on his former girlfriend. Grant's defense was that he did strike his ex-girlfriend, but that he was acting in self-defense.

At his trial, Grant testified, inter alia, that he had never “threatened to kill or hurt anybody, ever” and that he had “never hit a woman before." Thereafer, the prosecution asked the trial judge to allow Grant's testimony to be impeached with a prior felony conviction from 1976 when Grant stabbed three people in a bar in New York. The prosecution's theory of admissibility was that Grant had “opened the door” by making statements to the effect that he was a nonviolent person and had created a “false impression with the jury as to his propensity for violence." (emphasis added).

Defense counsel objected that this conviction was inadmissible under Texas Rule Rule of Evidence 609(b), which states that "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." The trial judge overruled this objection and allowed for Grant to be impeached by his prior conviction.

On appeal, the Court of Appeals noted that the trial judge was not clear as to whether he allowed for the impeachment because, inter alia, he found that the conviction's probative value substantially outweighed its prejudicial effect under Texas Rule Rule of Evidence 609(b) or whether he found that "Grant 'opened the door' for impeachment....when he made affirmative misrepresentations about his propensity for violence." (emphasis added). The Court of Appeals, however, found that it did not need to consider Texas Rule Rule of Evidence 609(b) because Grant had "opened the door" by creating a '"false impression" of law abiding behavior, allowing for impeachment basd upon his prior felony conviction.

To me, this analysis makes no sense. "Character evidence" is covered under Texas Rule of Evidence 404 and in the criminal context typically consists of the prosecutor trying to prove that the defendant has a propensity to act in a particular manner (e.g., violently) and that he thus acted in conformity with this propensity when committing the subject crime. "Impeachment evidence," at least when prior convictions are involved, is covered under Texas Rule of Evidence 609, and in the criminal context consists of the prosecutor trying to prove that the defendant's past convictions make it so that the jury should not trust his testimony.

Thus, in a defendant's trial for assault, his felony assault conviction admitted under Texas Rule of Evidence 609 would be admitted to show that the jurors should not trust his testimony, but it would not be admitted to show that he had a propensity to be violent and that he acted in conformity with that propensity when committing the subject crime. Indeed, the Advisory Committee's Notes to the 1990 amendment to Federal Rule of Evidence 609 (after which Texas Rule of Evidence 609 is modeled), notes that "the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice --i.e., the danger that convictions that would be excluded under Fed. R. Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes."

Now, lets look at the "opening the door" rationale used by Texas courts. The prosecution's theory of admissibility was that Grant had “opened the door” by making statements to the effect that he was a nonviolent person and had created a “false impression with the jury as to his propensity for violence." (emphasis added). The Court of Appeals agreed and thus allowed him to be "impeached" through his prior violent felony conviction.

The problem is that under the court's theory, the prosecution was making a "character evidence" use of the conviction, not an "impeachment" use of the evidence. The prosecutor was refuting the defendant's claim that he did not have a propensity for violence by presenting evidence that he had a propensity for violence based upon his violent felony conviction. If the prosecutor were making an impeachment use of the evidence, he would be using the violent felony conviction not to refute the defendant's testimony about his non-propensity for violence but to show that he was lying on the witness stand and should not be trusted by jurors. Texas courts seem to be confusing these two types of evidence, resulting in their flawed "opening the door" rationale.